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Back Door Legislation or The Root of Judicial Activism

If there is anyone who still reads this blog they will be well aware that I have been lousy at posting anything in the last month or so. I have been working on various other projects and purposely leaving this site dormant for the present, but I am compelled to post after I heard that the Supreme Judicial Court of Massachusetts is hearing a lawsuit on gay marriage. The court is being used as a vehicle to try to get a 1913 law thrown out which prevents the state from issuing marriage licenses to couples who are not residents of Massachusetts if their marriage would not be recognized in their home states.The argument is that the law is being used to discriminate against gay couples. Unfortunately this is a case of throwing the baby out with the bathwater. If the law is being used to discriminate against gays then it should be applied equitably rather than being repealed. These plaintiffs need to prove that heterosexual couples who would not be allowed to marry a home are being given marriage licenses in Massachusetts.

It is easy to see that the agenda operating behind this is not deterred by state boundaries. This is nothing more than a step to legalize gay marriage throughout the country. If this suit succeeds there will be couples from around the country who come to Massachusetts to marry and then complain in their home states that they are facing discrimination. Nobody can argue that this is not the case because the plaintiffs include eight out of state couples. This will happen despite the fact that there is already a federal law stating that one state is not obligated to recognize marriages performed in another state.

I will attempt to walk a very fine line here. I do not wish this to be viewed as a homophobic posting. Unfortunately I cannot claim to know and love a large number of gay people (that would strengthen my argument) but I would hope that it can be said that I treat all gay people with whom I come in contact with the same respect that any human being deserves. I might add that this is the same respect which I withold from bigots of every type. I abhor bigotry and hope never to be guilty of it. That being said I want to address this suit in the light of judicial activism.

Suits like this are the very thing that give rise for judges to exercise any pre-disposisiton towards judicial activism. If this suit has merit the proper course of action would be to have the law rewritten or applied fairly. The plaintiffs have expressed their intention – which is to have the law annulled. If they fully win their case activist judges on the Supreme Judicial Court of Massachusetts can use it as an excuse to rule that the law be removed rather than corrected and enforced properly.

Anyone who nievely argues that this case stops at Massachusetts must ask themselves what a gay couple gains by going to Massachusetts to get married if they then return to their home state knowing that their marriage will not be recognized. The answer is that they gain nothing except more leverage in their fight to legalize gay marriage in their home states. This is not the correct way to go about changing the law. If you want a legal gay marriage move somewhere that it is already legal. If you want to legalize gay marriage live within the bounds of the law and push for legislation to make gay marriage legal where you live.

We have an estalished process for the passage of laws. If a majority of people believe in something it will become law. We have checks in place to minimize the chance for majorities to trample the rights of minorities, but the judicial system is to interpret law and not write it through opinion. If the 1913 law should be repealed that should happen through a vote of the legislature or a ballot initiative. Even Gov. Schwarzenegger understood that when he vetoed a bill to legalize same-sex marriage because the people of California had already passed a proposition stating that “only marriage between a man and a woman is valid or recognized in California.” The governor argued rightly that “We cannot have a system where the people vote and the Legislature derails that vote.” It can also be said that we cannot have a system where the people vote and judges derail the vote once it has passed by a super-majority.

2 comments for “Back Door Legislation or The Root of Judicial Activism”

Backdoor legislation is the term used for judicial opinions that establish law rather than simply interpreting law (which is what courts are supposed to do). The example above is proof.

The plaintiffs are trying to get a 93 year-old law repealed that they don’t like because of their gay agenda. What they should be doing is challenging the fairness of the law across the board. If they simply want to turn Massachusetts into the national gateway for gay marriage then they should be going through the legislature the get the law repealed without having to prove that the law is discriminatory. (Personally I can’t see how it is discriminatory for a state to write its laws so that it cannot be used to sidestep the authority of other states.)

Of course by now the point is inconsequential since California now has gay marriage ans does not have such a statute so California can be the gateway for challenging DOMA and heterosexual-only definitions of marriage across the nation.